Opinion
3:23-cv-128-KAP
12-13-2023
VASILIOS PENTSAS, Plaintiff v. WARDEN ABBY TATE, et al., Defendants
REPORT AND RECOMMENDATION
KEITH A. PESTO UNITED STATES MAGISTRATE JUDGE
Recommendation
I recommend that the complaint be dismissed in part for failure to state a claim, without leave to amend.
Report
This is filed as a Report and Recommendation because in Burton v. Schamp, 25 F.4th 198 (3d Cir. 2022), the Court of Appeals held that in cases where judgment may be appropriate as to parties that have not consented before judgment to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C), the Magistrate Judge should proceed by Report and Recommendation to the District Court, which has Article III authority to dismiss parties and enter final judgment in the matter in favor of parties who have not filed a consent. Ordering service of a complaint to determine whether parties in whose favor judgment would be entered would consent to Magistrate Judge jurisdiction under 28 U.S.C.§ 636(b)(1)(C) would waste scarce resources. Accordingly, regardless of any consent or lack thereof by the plaintiff, this format is used because review indicates that most of the complaint should be dismissed.
The Prison Litigation Reform Act's screening requirements for inmate plaintiffs proceeding in forma pauperis are set out at 28 U.S.C.§ 1915(e)(2):
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that -
(A) the allegation of poverty is untrue; or
(B) the action or appeal -
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.See also 28 U.S.C.§ 1915A. Plaintiff Pentsas is an inmate at S.C.I. Fayette serving an aggregate 12-30 year sentence imposed in the Court of Common Pleas of Blair County in July 2022 after Pentsas pleaded guilty to murder and other offenses. Once at S.C.I. Fayette for several months, Pentsas filed a complaint subject to the PLRA that alleges that in June 2021 a Blair County Prison corrections officer, defendant Murray, caused or permitted an attack on him by other inmates when Pentsas was a pretrial detainee in the Blair County Prison. Pentsas alleges Murray knowingly allowed inmates related to his victim into his cell where they “assaulted” him, presumably by kicking and punching him. After the attack the other inmates allegedly left without any official intervention, Pentsas alleges he took a few minutes, “regained his equilibrium,” and walked to the call button in the day room of his unit. He was subsequently taken to the medical unit and given ice and anti-inflammatory medication. Pentsas also names the warden, Abby Tate, and the contract provider of health care services in the prison, Prime Care Medical, as defendants.
Fed.R.Civ.P. 8(a) requires the complaint to be a short and plain statement containing sufficient factual matter that if accepted as true would state a legal claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the Supreme Court's words, plaintiff must allege enough facts in the complaint to “nudge” a claim “across the line from conceivable to plausible.” Id., 556 U.S. at 683, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff must in a nonconclusory way allege facts that permit the inference that each defendant he names caused the harm he alleges. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005); Chavarriaga v. New Jersey Department of Corrections, 806 F.3d 210, 222 (3d Cir. 2015).
Read as liberally as possible, Pentsas states a failure to protect claim against Murray. A corrections officer is liable for a failure to protect an inmate from assault by other inmates if the corrections officer is “deliberately indifferent,” that is, if that defendant “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The complaint is light on the facts but at least does more than announce conclusions about Murray.
The same cannot be said for any claim against Tate or Prime Care. Tate's liability is predicated on allegations that she “could of” (that is, should have) trained Murray better, and failed to punish Murray for allowing the attack. Pentsas has no legal right to have Murray punished by anyone, see Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”), and Tate does not have vicarious liability for any civil rights violations by subordinates, including her employees. Being legally responsible for overall operations of the prison is not personal participation in any subordinate's actions. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690-91 (1978) (municipal employers are liable for deprivation of civil rights caused by their own illegal customs and policies but are not liable for their employees' actions).
As for Prime Care, the Eighth Amendment gives Pentsas a claim only if he alleges he was injured by Prime Care's “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Merely having received medical care that Pentsas finds unsatisfactory two years after the fact does not give Pentsas a claim: there must be plausible allegations of: 1) injury caused by 2) deliberate indifference by Prime Care to 3) a serious medical need. To repeat, a defendant is “deliberately indifferent” only that defendant “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). The complaint must allege those facts, not just announce conclusions. Pentsas is not just short on facts: the absence of factual allegations that would be obvious if they existed is a good indication that the allegations cannot be made. That lack most obviously appears in the absence of any allegation of the first requirement, an allegation of injury. Pentsas appears to believe liability flows from alleging that other inmates injured him and his experience with Prime Care was unsatisfactory. That is incorrect. Pentsas must allege that some injury resulted from Prime Care's treatment or lack thereof. The injuries he alleges resulted 100% from the attack. That can be blamed on Murray but hardly on Prime Care. Pentsas alleges nothing about any injury resulting from any alleged lack of care, and in fact part of his requested relief is an order sending him out to “see a specialist about his jaw.” But Pentsas' implicit acknowledgment that he needs a specialist to determine whether he has some injury that needs treatment is well-nigh conclusive that no one knew in June 2021 that Pentsas had an injury to his jaw that went beyond the bruising that Pentsas implies and that some treatment for it beyond the bag of ice and analgesics was necessary. Neither Prime Care nor anyone working for Prime Care can possibly be deliberately indifferent to an unknown injury. If Pentsas presently has a medical problem that needs evaluation, the proper avenue to seek that is a request to the medical department at S.C.I. Fayette.
Second, deliberate indifference requires a more culpable state of mind than negligence or medical malpractice. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999). It requires allegations that injury resulted because: (1) Prime Care, pursuant to some custom or policy of Prime Care, denied reasonable requests for medical treatment of a serious medical need; or (2) knew of the need for treatment of a serious medical need and pursuant to some custom or policy of Prime Care intentionally refused to provide any; or (3) pursuant to some custom or policy of Prime Care delayed necessary medical treatment of a serious medical need for non-medical reasons; or (4) pursuant to some custom or policy of Prime Care prevented Pentsas from receiving recommended treatment for a serious medical need. Pearson v. Prison Health Service, 850 F.3d 526, 538 (3d Cir.2017). Pentsas does not plausibly allege any one of these scenarios, and what he does allege negates most of them. Pentsas acknowledges that he received prompt treatment. His retrospective allegations that his injuries needed more than a bag of ice and some analgesics do not allege a denial of treatment, they allege treatment. Deliberate indifference requires a subjective awareness of wrongful conduct: Pentsas has become convinced that his medical care was inadequate, but he fails to allege facts from which anyone could conclude that anyone connected with Prime Care thought so in June 2021.
Yet another problem with any claim against Prime Care is that liability requires indifference to a serious medical “need” and not the bare existence of “a serious event” or “a serious condition.” No one disputes that being assaulted is serious, but a medical need is “serious” if and only if it is one that has been diagnosed by a physician as mandating treatment, or so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987), cert. denied, 486 U.S. 1006 (1988). Pentsas alleges that he suffered “permanent damage” to his jaw, a concussion, a black eye, and had a filling knocked out. That is not a nonconclusory allegation of a serious medical need for purposes of the Eighth Amendment. Compare Mohorcic v. Hogue, 2013 WL 6118693, at *3-4 (W.D. Pa. Nov. 21, 20i3)(Lenihan, M.J.)(holding a loss of consciousness after hitting head on a concrete wall was not a serious medical need, collecting cases). Black eyes, concussions, and a loose filling (not alleged to be irreplaceable or not replaced) can hardly be characterized implying serious medical needs. Black eyes and concussions typically resolve without treatment, or more precisely, giving the patient time to heal is the treatment.
With respect to the unspecified “permanent damage” to Pentsas' jaw, it bears repeating that after two years of reflection there is no allegation that Pentsas needed something so far beyond a bag of ice that it amounted to a serious medical need. There can be no allegations, therefore, that anyone at Prime Care knew about it. Pentsas' suggestion that somehow liability attaches because “Medical Staff never ordered an x-ray” is contradicted by the Supreme Court's rejection of the exact same claim in Estelle v. Gamble itself. (Estelle v. Gamble involved a broken back, so its facts are far more extreme than Pentsas alleges.) In general, a lack of testing is only culpable when the need for testing is already known under the same obviousness standard that Monmouth County makes applicable to any other medical need. “Testing would have helped” is not the standard, and “should have known” is not enough. See Nicini v. Morra, 212 F.3d 798, 815 (3d Cir. 2000)(en banc)(affirming summary judgment to caseworker Cyrus for injury to Nicini under deliberate indifference standard because “so far as the record reveals, there was nothing “before [Cyrus's] eyes” that suggested that Nicini faced a substantial risk of serious harm.”)
The Court of Appeals, in Grayson v. Mayview State Hospital, 293 F.3d 103 (3d Cir.2002) and similar cases, directs district courts to allow plaintiffs in civil rights cases leave to amend unless that amendment is “futile” or “inequitable.” Amendment of the complaint is certainly inequitable and most likely futile. It is a staple of prison litigation to name as many defendants downstream from the corrections officer who allegedly caused an injury to plaintiff as possible, but the Court of Appeals also directs that with two exceptions “federal courts treat pro se litigants the same as any other litigant.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). Those exceptions are liberal construction of pleadings - which does not relieve pro se plaintiffs from alleging sufficient facts in their complaints - id., 704 F.3d at 245, and giving notice to pro se inmate litigants when a motion to dismiss will be treated as a summary judgment motion. Id.
Liberal construction of pro se pleadings means paying attention to what the litigant has alleged and using common sense, not that a court should imagine that unpleaded facts exist. As the Supreme Court directed in Ashcroft v. Iqbal, supra, 556 U.S. at 679:
Determining whether a complaint states a plausible claim for relief will [] be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [] But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
(cleaned up). Common sense says the complaint against defendant Murray deserves to go forward but that the other two defendants are only along for the ride and should not be faced with the costs of litigation.
Pursuant to 28 U.S.C.§ 636(b)(1), the plaintiff can within fourteen days file written objections to my recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain